Following an order granting the parties’ joint motion for approval of settlement agreement, the plaintiff moved for award of attorneys’ fees and renewed his motion to reopen discovery to discover defense counsel’s billing records. Over defendant’s objection, the court granted plaintiff’s motion, reasoning that the billing records were relevant and discoverable, because the defendant had put the reasonableness of hours and rates charged by plaintiff’s counsel at issue, by opposing plaintiff’s motion for attorneys’ fees.

Initially the court noted that cases have come down on both sides of the issue, with some courts holding that defenses counsel’s billing records are discoverable, while others have held that they are not.

Discussing the applicable law generally, the court explained:

The general principle underlying these divergent results seems to be that whether such information is discoverable depends on the nature of the objections raised to the fee request. Where the opposing party challenges the reasonableness of the rate or hours charged by the moving party’s counsel, courts are more likely to find that evidence of the nonmoving party’s counsel’s fees are relevant and discoverable. See State of New York v. Microsoft Corp., No. 98–1233, 2003 WL 25152639, at *2 and n. 3 (D.D.C. May 12, 2003) (stating that “some of the cases explicitly note that ‘ [w]hether discovery is appropriate depends, in part, on the objections raised by the opponent to the fee petition going to the reasonableness of the fee petition’ “) (quoting Murray v. Stuckey’s Inc., 153 F.R.D. 151, 152–53 (N.D.Iowa 1993)) (collecting cases); see, e.g., Pollard, 2004 WL 784489, at *3 (stating that because “DuPont objected to the excessiveness of the fees requested in the fee petition for the preparation of the fee petition …, it appears that DuPont’s own counsel’s time spent in preparing a response to Pollard’s petition for fees would serve as a logical yardstick from which to determine the reasonableness of such time expended by the plaintiff’s counsel”).

Addressing and rejecting the defendant’s contentions that their billing records were not subject to discovery, the court reasoned:

In the case at bar, defendants have not only challenged the reasonableness of the fees sought by plaintiffs, they have also expressly referenced their own fees in support of their arguments. For example, in their memorandum of law, defendants cite the specific fees and costs sought, and hours claimed, by plaintiffs’ counsel, and contrast them with those of defense counsel, noting that “Plaintiffs seek almost 3 times as much compensation for prosecuting this action as Radec spent to defend.” Dkt. # 334 at 6. Later, in discussing plaintiffs’ counsel’s hourly rates, defendants state that “the rates charged to Radec in this case are instructive.” Id. at 12. Similarly, defendants state that over a certain period, “Radec was charged only the flat fee of $175,000,” whereas “Plaintiffs claim $764,915.00 in fees for the same period….” Id. at 19.

Thus, defense counsel themselves have put at issue the reasonableness of the hours and rates charged by plaintiffs’ attorneys, and have used their own hours and rates as yardsticks by which to assess the reasonableness of those sought by plaintiffs. I therefore find that defense counsel’s billing records are relevant and discoverable. Cf. Marks Constr. Co. v. Huntington Nat’l Bank, No. 1:05CV73, 2010 WL 1836785, at *7 (N.D.W.Va. May 5, 2010) (“absent an attempt [by defendants] to claim a comparison between what Defendants paid and the claims of Plaintiffs as the basis for challenging the reasonableness of Plaintiffs’ claimed fees, there is no relevance shown with respect to the issues of the amount and reasonableness of attorneys fees and costs claimed by Plaintiffs’ counsel that justifies the required production of the billing records of [defense counsel]”).

Defendants’s argument that their detailed billing records are not discoverable because their opposition to plaintiffs’ fee request only cited the total hours and rates charged to defendants by their attorneys, see Def. Mem. of Law (Dkt. # 344) at 3, misses the point. In arguing that the hours claimed by plaintiffs’ attorneys are unreasonable, defendants have focused on specific hours and entries in plaintiffs’ counsel’s billing records. Defendants have stated, for example, that plaintiffs’ request for $15,000 for time spent preparing affidavits in connection with a particular motion is excessive, that one of plaintiffs’ attorneys billed 1.5 hours for a hearing that only took a half hour, and that plaintiffs’ allocation of 1443.2 hours of work on preparing binders is “outrageous.” Dkt. # 334 at 17–18. It is precisely because defense counsel then cite only their total time spent on the case that renders it difficult to determine whether this is a fair comparison.

While the court recognized that there may be significant differences in the ways that plaintiffs’ counsel and defense counsel litigate a case, and that this could cause a disparity betweenthe two sides’ respective hours and hourly rates, the court explained that any such a disparity would not necessarily mean that one side’s fees were necessarily unreasonable or excessive. Further, the court held that such considerations go to the weight to be assigned to defense counsel’s billing records rather than rendering them non-discoverable. Thus, the court granted plaintiff’s motion.